The Ill-Designed “Continuous Treatment” Rule for the Health Law of Massachusetts

By Alex Stein

Under Massachusetts law, suits alleging medical malpractice in a treatment of a minor patient must be filed “within three years from the date the cause of action accrues.” G.L.c. 231, § 60D. In a recent case, Parr v. Rosenthal, 57 N.E.3d 947 (Mass. 2016), the Supreme Judicial Court of Massachusetts decided that a patient’s continuous treatment by the same physician can toll this period under certain restrictive conditions. One of those conditions requires the plaintiff to show that the physician continued to treat the patient “for the same or related condition” after committing the alleged malpractice, and that “treatment” in that context includes supervision of, as well as consultation and advice to, other treating physicians. Another condition makes continuous treatment part of the discovery rule that moves the onset of the limitations period to the day on which the patient knew or could have reasonably suspected that her physician treated her negligently. According to the Court, continuous treatment instills in the patient “innocent reliance” that the physician treats her properly, which makes the physician’s malpractice not reasonably discoverable. Moreover, innocent reliance can even be present when the patient realizes that she sustained harm from the physician’s treatment. As the Court explained, “A patient who continues under the care of the same physician will still have the same challenges in learning whether the harm [she] suffered from the physician’s treatment arose from the physician’s negligence.” Based on these observations, the Court decided that the “continuous treatment” rule will not benefit patients who affirmatively suspected that they received negligent treatment from their physician. Such patients, the Court held, cannot show “innocent reliance.”

The newly formulated rule did not help the plaintiffs in the case at bar. The plaintiffs were denied tolling for two reasons. First, the plaintiffs’ cause of action was reasonably discoverable for the period that exceeded three years. Second, the defendant physician discontinued his involvement in the treatment of the plaintiffs’ infant son more than three years prior to the filing of the suit.

The newly formulated rule also did not improve the health law of Massachusetts. The Court’s adoption of “innocent reliance” as a reason for allowing continuous treatment to toll the statute of limitations originated from a serious misconception. The “innocent reliance” rationale animates the continuous treatment rule in the context of attorney malpractice, but attorney malpractice and medical malpractice are not the same. The continuous treatment rule serves a distinct social purpose in the system of medical malpractice and health law generally. This rule is premised on the belief that “the most efficacious medical care will be obtained when the attending physician remains on a case from onset to cure.” Grey v. Stamford Health System, Inc., 924 A.2d 831, 837 (Conn. 2007); see also Blanchette v. Barrett, 640 A.2d 74, 85 (Conn. 1994); Ewing v. Beck, 520 A.2d 653, 659–60 (Del. 1987). Equally important, absent the continuous treatment rule, the statute of limitations will fracture the trust between patients and physicians by putting pressure on the patient to promptly sue her doctor when anything goes wrong. This prospect is inimical to good healthcare. The continuous treatment rule consequently avoids creating “a dilemma for the patient, who must choose between silently accepting continued corrective treatment from the offending physician, with the risk that his claim will be time-barred or promptly instituting an action, with the risk that the physician-patient relationship will be destroyed.” Rizk v. Cohen, 535 N.E.2d 282, 285 (N.Y. 1989).

Under this rationale, continuous treatment should toll the statute of limitations by its own force rather than as a component of the discovery rule. Correspondingly, the continuous treatment rule should also benefit a patient who knows about her physician’s mistake, but still wants to allow the physician to fix it. There is no need to condition the tolling of the statute of limitations on the patient’s “innocent reliance.”

The Court put the “innocent reliance” requirement in place to prevent patients from obtaining continuous treatment strategically in order to circumvent the statute of limitations. However realistic it may be in the attorney malpractice context, from which the Court drew the “innocent reliance” requirement, this scenario is far removed from the realities of medical care. A patient who knows or suspects that she was mistreated by her physician will not rationally choose to receive additional treatment from that physician, instead of suing him for malpractice, unless she believes that the treatment will improve her condition. And if the patient believes or hopes that the treatment will improve her condition, choosing to go with that treatment while preserving the option of filing a malpractice suit against the physician is neither improper nor illegitimate.

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About Alex Stein

Alex Stein is a Professor of Law at Brooklyn Law School. Before joining Brooklyn, Alex was a Professor of Law at Cardozo Law School (2004-2016) and served for more than a decade at the Hebrew University of Jerusalem Faculty of Law (1991-2004). He also held visiting professorial appointments at Alabama, Columbia, Miami, and Yale Law Schools. In Fall 2016, he visited Harvard Law School, where he taught Torts and a seminar on Medical Malpractice. Alex's specialty areas include Torts, Medical Malpractice, Evidence, as well as general legal theory and economic analysis of law. He authors three books, An Analytical Approach to Evidence (with Ronald J. Allen et al.) (6th ed. 2016); Foundations of Evidence Law (2005) and Tort Liability under Uncertainty (2001, with Ariel Porat), and over sixty articles of which many have appeared in leading journals. Alex was one of the founding editors of Theoretical Inquiries in Law and is on the editorial board of the International Journal of Evidence & Proof. In 2013, he launched an e-journal STEIN on Medical Malpractice, http://www.steinmedicalmalpractice.com, that covers all significant developments in medical malpractice laws across the United States. He graduated from the Hebrew University of Jerusalem and earned a Ph.D. from the University of London.